Judge: Yolanda Orozco, Case: 20STCV05572, Date: 2022-08-02 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

Case Number: 20STCV05572    Hearing Date: August 2, 2022    Dept: 31



Relevant Background


On February 13, 2020, Plaintiff Eric Gonzalez filed the instant action against Defendants Custom Building Products, LLC; The Sherwin Williams Company; Do It Best Corp.; PPG Industries; 3M Company; Rust-oleum Corporation; The Gorilla Glue Company, LLC; Oatey Co.; DAP Products, Inc.; W.M. Barr & Company, Inc.; Western Pacific Distributing, LLC dba Westpac Materials; Basalite Building Products, LLC; Sika Corporation; Quikrete International, Inc.; T. Christy Enterprises, LLC; Crawford Products Company, Inc.; The Dow Chemical Company; Henry Company, LLC; Masterchem Industries, LLC; Sashco, Inc.; Henkel Corporation; CTS Cement Manufacturing Corporation; RVC Venture Corp. dba Riverside Cement Co.; Sakrete of North America, LLC; United States Gypsum Company; Momentive Performance Materials, LLC; Vogel Paint & Wax Company, Inc. dba Old Masters; Mapei Corporation; United Gilsonite Laboratories; Valspar Specialty Paints, LLC; Behr Process Corporation; and Does 1 through 100.


On June 26, 2020, a Notice of Death was filed indicating that on June 17, 2020, Plaintiff died of injuries which are the subject of this action. On October 1, 2020 the Court granted Plaintiff’s motion to appoint Erik B. Gonzalez, Jr. and Jennifer Gonzalez-Ojeda as co-successors-in-interest of Plaintiff and Decedent Eric Gonzalez (hereinafter “Decedent”).


Plaintiffs’ operative Third Amended Complaint (“TAC”) asserts the following causes of action:


  1. negligence;
  2. strict liability – warning defect;
  3. strict liability – design defect;
  4. fraudulent concealment; and
  5. breach of implied warranties.


In this toxic tort action, the TAC alleges, inter alia, that, in the course of his business, Decedent worked with and around various hazardous materials and products that were manufactured by the various Defendants. As to Defendant 3M Company, the TAC alleges that Decedent was exposed to “3M Bondo Lightweight Body Filler,” which possess certain toxins.


Defendant 3M Company (“3M”) now moves for summary judgment on the TAC on the ground that Plaintiffs are unable to show that Decedent was exposed to one of its products or that the alleged exposure caused Decedent’s injuries. In the alternative, 3M also seeks summary adjudication on each cause of action raised in the TAC as well as Plaintiffs’ claim for punitive damages. No opposition has been filed.


Legal Standard


In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) 


“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code of Civ. Proc., § 437c, subd. (f)(1).)  A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)   


“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A plaintiff moving for summary judgment or summary adjudication must prove each element of the cause of action.  (Code Civ Proc., §¿437c, subd. (p)(1).)  When moving for summary adjudication of an affirmative defense, a plaintiff has the initial burden to make a prima facie showing that that the affirmative defense is without merit.  (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal. App. 4th 1190, 1199-1200.)  After the plaintiff meets this burden, the burden shifts to the defendant to show that a triable issue of material fact exists.  (Code Civ Proc., §¿437c, subd. (p)(1).)


To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilarsupra, 25 Cal.4th at 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilarsupra, 25 Cal.4th at 855.) 


“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467; see also Code Civ. Proc., § 437c, subd. (c).)




  1. Whether Defendant 3M Company is Entitled to Summary Judgment


Defendant 3M contends that it is entitled to summary judgment because there is no evidence to show either that Decedent was exposed to one of its products or that one of its products caused Decedent’s injuries. It is noted that each cause of action is predicated on the exposure to at least one of Defendant 3M’s products. (UMF Nos. 7-9; Exh. E, TAC a¶ 45; TAC at pg. 8:27-9:8.)


    1. Exposure to Product


Defendant 3M argues that there is no triable issue of material fact as to whether Decedent was exposed to one of its products. (Motion at pp. 6-8.)


In a toxic tort action, the threshold issue “is exposure to the defendant’s product” and “plaintiff bears the burden of proof on this issue.” (See Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 975-976.) In instances where the plaintiff “cannot make the threshold showing of exposure to a harmful product, ... we do not get to the next step of determining if the ‘product’ was a substantial factor” in causing the injury. (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1339.) The possibility of exposure does not create a triable issue of fact. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103-1105 [“Does this possibility create a triable issue of fact? We think not. It is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”])


Defendant 3M presents the following evidence. Decedent’s children found various tools, materials, products that Decedent stored in his daughter’s garage. (UMF No. 10; Exh. O, Gonzalez Depo, Vol. 1, at pg. 57:17-58:18; 59:24-60:12) Photos were taken of the products used, and this included three photos of 3M Bondo Body Filler. (UMF Nos. 11, 14; Exh. T, Gonzalez Depo, Vol. 2, at pg. 194:9-18; 196:5-10; Exhs. Q-S, Photographs of 3M Bondo Body Filler [Bates Nos. “GON 01701-10703]; Exh. U, Samo Decl. ¶¶ 18-20.)


Plaintiff Erik Gonzalez speculates that Decedent also used a wrapping tape produced by Defendant 3M. (UMF No. 15; Exh. T, Gonzalez Depo, Vol. 2, at 233:2-234:3; 234:19-25.) Plaintiffs each testified in their deposition that they were unaware of the products that Decedent used in his line of work and did not observe him using any chemical products. (UMF Nos. 16-28; Exh. N: Gonzalez-Ojeda Depo at pp. 41:23-25, 42:21-24; Exh. O: Gonzalez Depo, Vol. 1, at pp. 29:19-21, 30:5-8, 33:7-9, 33:10-34:1, 87:21-88:20, 90:18-24, 91:3-5, 97:6-11; Exh. T: Gonzalez Depo, Vol. 2, at pp. 197:15-22, 198:5-21, 238:23-239:2  )


Also, based on responses to various discovery requests, Plaintiffs were unable to provide responses or documents evidencing Decedent’s use of Defendant 3M’s products. (UMF Nos. 33-36; Exh. F: 3M’s Special Interrogatories to Plaintiffs (Set One); Exh G.: 3M’s Request for Production of Documents to Plaintiffs (Set One); Exh. H: 3M’s Request for Admissions to Plaintiffs (Set One); Exh. J: Plaintiffs’ response to 3M’s Special Interrogatory Nos. 5, 17; Exh. K: Plaintiffs’ response to 3M’s Request for Production of Documents No. 15; Exh. L: Plaintiffs’ Response to 3M’s Request for Admission No. 20.)


Based on this uncontested evidence, the Court finds that Defendant 3M has met its burden in showing that there is no triable issue of material fact as it relates to whether Decedent was exposed to one of Defendant 3M’s products. The photographs of the 3M Bondo Body Filler merely show that Decedent possessed the product, but it does not show that Decedent purchased this product for his own use. Furthermore, there is no evidence to show how often Decedent was exposed to that product, if at all, or how Decedent used that product. Additionally, the evidence presented does not show beyond mere possibility that Decedent used any other product manufactured by Defendant 3M. Even when examining the evidence in the light most favorable to the Plaintiffs, the evidence merely shows that Decedent was possibly exposed to a product manufactured by Defendant 3M. However, the possibility of exposure is insufficient to establish a triable issue of fact. (McGonnell, supra, 98 Cal.App.4th at 1103-1105.)


The burden now shifts to Plaintiffs to show that a triable issue of fact exists as to exposure. However, because Plaintiffs have failed to file an opposition, they are unable to meet their burden.


Therefore, because the evidence only supports the possibility of exposure, the Court finds that there is no triable issue of material fact that Decedent was exposed to Defendant 3M’s product. Consequently, because Plaintiffs have failed to establish the threshold issue of exposure to the alleged product, it is unnecessary to determine whether Defendant 3M’s products were a substantial factor in causing Decedent’s injuries. (Miranda, supra, 187 Cal.App.4th at 1339.)


Based on the foregoing, the Court GRANTS Defendant 3M’s motion for summary judgment. In the interest of judicial efficiency, the Court declines to address the remaining arguments raised in the instant motion.




Defendant 3M’s unopposed motion for summary judgment is GRANTED. Defendant 3M’s alterative motion for summary adjudication is DENIED as moot.


Defendant 3M shall give notice.


The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All social distancing protocols will be observed at the Courthouse and in the courtrooms.